PLJ 2023 Cr.C. (Note) 211
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
RAZA HAIDER alias NAEEM DAD and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 646 & Crl. Rev. No. 387 of 2017, heard on 19.11.2021.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Ocular account--Quantum of sentence--No evidence of motive was on record, neither Investigating Officer was able to collect crime empties at place of Walima where aerial firing was restored to, nor any participant of Walima ceremy was produced to column motive as based on truth--Motive in this case is not proved--The appellant remained absconder for a considerable period which fact is considered as corroborative to ocular account giving support to prosecution case--Prosecution has successfully brought on record evidence of his absconsion through warrants of arrest and proclamations and related witness PW-6 was also produced--On same analogy, if Court disbelieve and exclude statements of two witnesses complainant (PW-9) and (PW-11), still prosecution remained successful in proving guilt o accused/appellant through statement of single injured witnes supported by other pieces of evidence on record--High Court is convinced that even after excluding statements of two witnesses complainant (PW-9) and (PW-11), sufficient evidence has come on record to justify conviction as well as sentence as recorded against accused/appellant by trial Court, through impugned judgment, which does not call for interference--Criminal appeal filed by accused/appellant is dismissed. [Para 10, 11, 12 & 13] A, B, D & E
2019 SCMR 1309
Evidence of a single witness--
----It is settled proposition that even evidence of a single witness is sufficient to sustain or upheld judgment of trial Court. [Para 12] C
2008 YLR 2223.
M/s. Muhammad Ahsan Bhoon and Irfan Riaz Gondal, Advocate for Appellant.
Mr. Azam Nazir Tarrar, Advocate for Complainant.
Rai Asif Mehmood, Deputy Prosecutor General for State.
Date of hearing: 19.11.2021.
Judgment
Raza Haider alias Naeem Dad, was convicted after a trial in FIR No. 196 dated 28.04.2009 for offences under Sections 302/324/ 109/34, PPC registered at police station Mohammad Wala, District Chiniot, vide judgment dated 04.03.2017 was sentenced as under:
Sentenced to imprisonment for life under Section 302(b), PPC, with compensation of Rs. 500,000/-under Section 544-A, Cr.P.C. to legal heirs of Rai Sher Sikandar (deceased), in case of default to further undergo 6 months SI.
Sentenced to imprisonment for ten years with fine of
Rs. 50,000/-under Section 324, PPC, in default to undergo 3 months SI.
He was also ordered to pay compensation of Rs. 100,000/-to injured Muhammad Azam under Section 544-A, Cr.P.C., in default to undergo six months SI.
All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended. Criminal Appeal No. 646/2017 has been filed to challenge the conviction and sentence, whereas, Criminal Revision No. 387/2017 has been brought by the complainant seeking enhancement of sentence.
2. Sultan Sikandar complainant (PW.9) through a written complaint Ex.PB reported that on the fateful day and time he along with Habib Ullah on a Car proceeded towards Chak No. 138 after attending Walima at Chak No. 134. On crossing canal bridge Bangla Ghausay Wala, Raza Haider (accused/appellant) and Babar alias Babri on a Car crossed them from behind. When reached Mor colony Ganja Tulla at about 6½ p.m. saw that Raza Haider armed with Kalashnikov type rifle and Babri with Repeater were standing in front of the Car, meanwhile, from Ganja Tulla another Car No. 235/SGO carrying Rai Sher Sikandar (deceased brother of the complainant), Muhammad Azam and Ghulam Abbas came and were stopped by accused persons, whereupon, all three riding the said Car came down and Raza Haider made burst of rifle hitting right ribs, right axilla, right arm and right armpit and he fell down. Raza Haider repeated the burst hitting Muhammad Azam injured (PW.10) on his right shoulder and other parts of body, he too fell down. The complainant party being empty handed could not do anything, Babri kept on extending threats by aiming weapon to them. Thereafter. Accused took away licensed Repeater gun along with bag of cartridges and the license of complainant’s father from their car and escaped. Rai Sher Sikandar succumbed to the injuries at the spot; Muhammad Azam was taken to the hospital for treatment
Motive was said to be longstanding criminal and political rivalry between the parties and on the same day prior to occurrence Raza Haider had made aerial firing at Walima and he was forbad by Rai Sher Sikandar (deceased), which was felt ill by the accused and thus they in consultation with each other committed the crime.
3. Muhammad Sharif Sub-Inspector after recording the statement of complainant (Ex.PB), proceeded to the spot, prepared site plan, injury statement and inquest report of deceased, collected blood stained earth from two points, took into possession car CENTRO SGO/235, recorded statements of witnesses, sent the dead body of Sher Sikandar to Civil Hospital for autopsy alongwith police papers, recorded supplementary statement of complainant and added offence under Section 109 PPC took last worn clothes of the deceased. The accused Raza Haider and Babar alias Babri were declared proclaimed offender, as such, challan was submitted to the extent of accused of abetment namely Atta Muhammad and Khuda Dad, they both were tried and acquitted. Subsequently, on his arrest Raza Haider was sent to Court to face trial, whereas, the other proclaimed offender Babar alias Babri was reported dead which factum was endorsed by the complainant as well, as such, in the report under Section 173, Cr.P.C. the name of said Babar alias Babri was placed in column No. 3.
4. During trial the prosecution examined the Investigating Officers, including Zahid Hussain Sub-Inspector (PW-13) who had partially conducted investigation of this case, arrested Raza Haider accused on 28.08.2016 and effected recovery of Kalashnikov P4 on the disclosure of Raza Haider accused/appellant on 04.09.2016 attested by Hamid Raza (PW-12), recovery of Repeater 12 bore from the Dera of Sher Bhatti on the lead of accused was also effected which he reportedly took away from the car of complainant; Dr. Khushnood Ahmad PW-5 conducted autopsy of Rai Sher Sikandar (deceased), Dr. Riaz ul Hassan (PW-14) medically examined Muhammad Azam injured (PW-10); Sultan Sikandar complainant (PW-9), Muhammad Azam injured (PW-10) and Habib Ullah (PW-11) furnished the ocular account of the occurrence, and rest of the witnesses are formal. On close of prosecution evidence, the accused appellant Raza Haider alias Naeem Dad when examined under Section 342, Cr.P.C. denied the prosecution evidence, however, did not opt to produce defence or to appear on oath in disproof of allegations levelled against him as envisaged under Section 340(2), Cr.P.C. and the trial ended in his conviction and sentence, as detailed supra.
5. Heard. Record perused.
6. As regards the ocular account, here in this case the same consists of two sets of witnesses, first one involves Sultan Sikandar complainant (PW-9) and Habib Ullah (PW-11) whose statements are that they were returning after attending Walima on car and witnessed the occurrence and the second set is formed by Sikandar (deceased), Muhammad Azam injured (PW-10) and Ghulam Abbas (given up), who according to the prosecution case, were the target of the accused. Taking up the statement of Sultan Sikandar complainant (PW-9) admittedly his place of abode is 10/12 kilometers away from the place of occurrence and similarly Habib Ullah (PW-11) also resides at a distance of 14/15 kilometers from the place of occurrence. The sole justification put forth by the complainant for his presence at the place of occurrence was that he along with Habib Ullah was returning after attending Walima, but no proof in the shape of invitation card was brought on the record and even no attendee of such ceremony was produced to establish Walima ceremony and that it was actually attended by the complainant as well. Furthermore, the complainant admitted that on the day of occurrence he had a mobile phone with him but he did not make any call to police or 15 emergency or Rescue-1122. Though, he tried to justify said element by saying that “I did try to make call to Police Station but the contact was not established. I made call on the PTCL number of Police Station.” Even if the complainant had attempted to make such call, the same could also be proved to substantiate the said accretion but no attempt was made by the prosecution in this respect. The other witness namely Habib Ullah (PW-11) made a statement in line with the complainant and he too admitted that no proof of such Walima ceremony or his attending it, was brought on the file. The complainant PW-10 and Habib Ullah PW-11, however, have contradicted each other on an important aspect i.e. according to the complainant “I left Habib Ullah and Ghulam Abbas to got (sic) the dead body and proceeded to Police Station for lodging of FIR at Pir Panja Adda…” Habib Ullah (PW-11) in clear terms stated that “I had not gone to the Hospita where dead body of the deceased was shifted or to the Hospital, where the injured was shifted and after leaving of the IO.. I had returned to my village.” The tone and the tenor of statement of PW-11 shows that he was not present at the place of occurrence. This aspect gets clarifie by post-mortem report of Rai Sher Sikandar (deceased) (Ex.PC) wherein, it has been written that the dead body was brought to the (sic)
from nearby abadi and had not placed me or the decease on the cot.”
Further that:
“Habib Ullah, Ghulam Abbas and Sultan Sikandar were not present at the place of occurrence and had not witnessed the Occurrence.”
This statement of witness rules out the presence of any other witness at the place of occurrence. His statement about the role of the accused finds corroboration from medical evidence coming through Dr. Khushnood Ahmad (PW-5) who had conducted autopsy on the dead body of Rai Sher Sikandar (deceased) on 29.04.2009 at 7.00 a.m. and found ante mortem fire arm injuries on different parts of body of deceased. The time span during injury and death and between death and post mortem as given by the said doctor coincide with the version put forth by this witness. Further, even the injuries sustained by Muhammad Azam (PW-10) at the hands of Raza Haider stand corroborated by Dr. Riaz ul Hassan (PW-14) who had medically examined Muhammad Azam PW-10 on 28.04.2009 and found lacerated wounds on chest, forearm, left arm and left shoulder, which are also fire arm injuries and the duration between injuries and medica examination matched with the time of occurrence given by the witness The presence of this witness at the time and place of occurrence is established yet by another factor i.e: Muhammad Azam during cross examination deposed that “Nasir Saeed Bhatti who had shifted me to Hospital had not joined the investigation the I.O. in my presence. Said Naseer Saeed is an advocate.” The factum of taking said Muhammad Azam to the hospital by Nasir Saeed Bhatti is supported by medical examination of Muhammad Azam Ex.PC, where, in the column “Nam of Relative or Friend’ the name of Nasir Saeed Bhatti clearly find mention. These are the strong circumstances which render the testimony of Muhammad Azam to the extent of occurrence an infliction of injuries by the accused/appellant, trustworthy.
9. As regards recovery of crime weapon, it has been noticed that the occurrence in this case took place on 28.04.2009 and after about seven years on 04.09.2016 the accused/appellant in the presence of Zahid Hussain Sub-Inspector and PWs disclosed and got recovered rifle, which was sent to PFSA and vide PFSA report Ex.PU the same was found in mechanical operating condition but mere its functionality test is not sufficient which could connect the accused/appellant with the commission of the crime. Even otherwise, recovery is just a corroborative piece of evidence and its proof or disproof could be considered for quantum of sentence.
10. Though no evidence of motive was brought on record, neither the Investigating Officer was able to collect crime empties at the place of Walima where aerial firing was restored to, nor any participant of Walima ceremy was produced to column the motive as based on truth. Thus, the motive in this case is not proved.
11. The appellant remained absconder for a considerable period which fact is considered as corroborative to ocular account giving support to prosecution case. Thus the prosecution has successfully brought on record evidence of his absconsion through warrants of arrest and proclamations and the related witness PW-6 was also produced. Such evidence was also put to him in his statement under Section 342, Cr.P.C. as per Question No. 8; yet he did not respond to such question effectively.
12. It is settled proposition that even evidence of a single witness is sufficient to sustain or upheld the judgment of the trial Court ,as held by a learned Division Bench of this Court in the case “Saeed Ahmed alias Papoo versus The State” (2008 YLR 2223). On the same analogy, if we disbelieve and exclude the statements of two witnesses namely Sultan Sikandar complainant (PW-9) and Habib Ullah (PW-11), still the prosecution remained successful in proving the guilt of accused/appellant through the statement of single injured witnes supported by other pieces of evidence on record. Reliance is placed of the case “Saleem Zada and others versus The State and others (2019 SCMR 1309).
13. For what has been discussed above, this Court is convinced that even after excluding the statements of two witnesses Sultan Sikandar complainant (PW-9) and Habib Ullah (PW-11), sufficient evidence has come on the record to justify the conviction as well as sentence as recorded against the accused/appellant by the learned trial Court, through the impugned judgment, which does not call for interference. Consequently, the criminal appeal filed by the accused/appellant is dismissed.
14. For the above reasons since the sentence recorded by the learned trial Court commensurate with the gravity of offence, therefore, no interference with respect to quantum of sentence is needed. Criminal revision filed by the complainant is also dismissed.
(A.A.K.) Appeal dismissed
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